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Sasko Lazarov/Photocall Ireland

Court of Appeal reduces €124,000 award made to man knocked off his bike by a bus

In its judgement today, the three-judge court agreed that the award should be cut.

THE COURT OF Appeal (CoA) has cut a €124,000 award made last year to a man who was knocked off his bike in a cycle lane by a bus to just over €65,000.

Gearoid O’Daly (40), a bank lending officer of Heuston South Quarter, Dublin, sued Bus Éireann and driver Declan Sheridan over the incident as he was travelling along the cycle lane at Custom House Quay, Dublin on 8 June 2016.

Bus Éireann had denied liability and claimed contributory negligence in that it argued O’Daly failed to look at where he was going.

O’Daly fractured his wrist and suffered abrasions and bruising. He claimed he developed chronic long-term pain subsequently and he underwent numerous treatments to try to deal with it.

The High Court’s Mr Justice Michael Hanna awarded him a total of €124,000 saying he accepted O’Daly’s evidence.

Bus Éireann appealed the award to Court of Appeal on grounds including that there was no evidence to support the High Court’s conclusion that there was a causative link between the accident and the complaints of widespread body pain syndrome or medically unexplained pain.

The defendants also argued that the trial judge erred in failing to properly interpret the medical evidence on both sides in coming to his conclusions.

The defendants further submitted that the overall award was excessive and was unsupported by the evidence.

O’Daly’s lawyers opposed the appeal.

In its judgement today, the three-judge CoA, comprised of Mr Justice Seamus Noonan, Mr Justice Donald Binchy and Mr Justice Senan Allen agreed that the award should be cut.

Giving the CoA’s decision Mr Justice Noonan said that the defendant had complained that the High Court judge had “sought to diagnose the plaintiff as suffering from a pain syndrome in the absence of any evidence”.

The CoA agreed that there was “some merit in that contention”.

There was no evidence which would justify a finding that the plaintiff was suffering from a pain syndrome, for example CRPS, which, a specific discrete finding that is medically verifiable, the CoA found.

That was “certainly not” the evidence of the plaintiff’s medical witness, the CoA added.

The CoA said the High Court judge had recognised that there was no psychological support for his conclusion, “which unfortunately undermines it”.

The CoA said that after taking the Book of Qantum, which is the publication that gives guidelines for compensation payments in personal injuries cases, and other comparable personal injuries cases into account O’Daly was entitled to an award of general damages of €55,000

The CoA went on to assess his special damages as being a sum just over €10,000, bringing the total of the award to O’Daly to just over €65,000.

In his judgement Mr Justice Noonan said as a general observation that an “ever-present issue in personal injury litigation is how the court is to assess complaints of pain and disability.”

“A particular difficulty arises where such complaints are not apparently supported by medical evidence.” he said.

A court has to use its best endeavours to gauge the impact of an injury on the particular claimant, the judge said, adding that this “often involves the question of credibility.”

He said that judges sometimes remark that they believe the plaintiff, or the plaintiff did not exaggerate their injury, or the plaintiff was a bad candidate for the accident and in many cases, that may suffice to arrive at a reliable conclusion.

However, he said that Judges “are fallible like everyone else and while the vast majority of plaintiffs are honest and truthful about their complaints, that is not invariably the case.”

Human nature being what it is, how people perceive their injuries will naturally vary.

The judge said that the “law must treat everyone fairly and equally”.

“Fairness means being consistent in one’s approach to particular injuries, even if, to some extent, they may affect different people differently.”

“Were it otherwise, assessment tools such as the Book of Quantum and the Personal Injuries Guidelines would be of little value.” he said.

Courts must, he said adopt a robustly sceptical attitude towards complaints for which there appears to be no objective medical explanation.

“At the end of the day however, sight must not be lost of the fact that the onus of proof is on the plaintiff to establish that whatever complaints they claim to have were caused by the defendants,” the judge concluded.

Aodhan O Faolain